Many plaintiffs—especially plaintiffs suing their employers—worry that, if their lawsuit becomes publicly visible, future employers will be reluctant to hire them. Few people want to be viewed as a litigious employee. Nonetheless, courts generally reject claims of pseudonymity that are based on such concerns about reputational or economic harm, see pp. 1457-60 of The Law of Pseudonymous Litigation.
But courts aren't entirely consistent on virtually anything related to pseudonymous litigation, and the same is true here. I've seen a few cases that allow pseudonymization, including retroactive pseudonymization, and even retroactive sealing at the behest of such plaintiffs. Here's one in which the court offered at least some degree of explanation, from the L.A. Superior Court.
In 2023, plaintiff had sued Minnesota Public Radio, American Public Media, Marketplace host Kai Ryssdal, and former Marketplace general manager Deborah Clark, alleging that
she [had] engaged in legally protected activities including but not limited to reporting and opposing employment and hiring practices she reasonably believed were discriminatory including but not limited to discrimination based on an individual's gender
and as a result was harassed and ultimately fired from Marketplace (in 2019). As best I can tell, the court filings offered few details on exactly what plaintiff did, though they "noted that Plaintiff was a female employee who opposed the unfair treatment against male employees by Defendants."
The case apparently drew no public attention; and, a bit under a year later, the parties settled, so the case is now in the process of being dismissed. For whatever it's worth, note that the plaintiff is now an editor in charge of certain kinds of investigations at a major American newspaper (and appears to have held that position when the lawsuit was filed).
After the notice of settlement, plaintiff asked the court to seal the record, or at least "to replace her name with a pseudonym." (The defendants didn't oppose the motion.) Judge Theresa Traber rejected the sealing request, on the grounds that it wasn't "narrowly tailored," precisely because the "proposed alternative … of proceeding under a pseudonym plainly demonstrates that a less-restrictive means exists to achieve the interest asserted by Plaintiff." And Judge Traber conditionally granted the request for pseudonymity; here's an excerpt from her Tentative Ruling last month (in the case that is now called Doe 1 v. Minnesota Public Radio);
In 2022, the Court of Appeal held that the overriding interest test, described in NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (Cal. 1999) with respect to sealing the record and codified in the Rules of Court discussed above, is equally applicable to a request for anonymity.
Here, there has been a failure of proof because Plaintiff has not presented admissible evidence from an individual with personal knowledge of the risk to Plaintiff arising from the case proceeding under her own name. Had such evidence been provided, the Court would be inclined to find that the risk of Plaintiff suffering irreparable damage to her career prospects and reputation overcomes the right of public access to the records bearing Plaintiff's true name.
The Court also finds that the proposed relief is narrowly tailored: while proceeding under a pseudonym would require refiling of all documents bearing Plaintiff's name to replace that name with a pseudonym and sealing of the original documents, the practical effect of that relief would maintain the right of public access to the substance of the records. Finally, the Court finds that there is no less restrictive means of achieving the overriding interest, as the only other remedy would be to seal the records outright, as discussed above.
In acknowledgement of the stipulation by the parties to sealing of the record or proceeding under a pseudonym and the defects in the motion arising from a failure of proof, the Court will grant the alternative motion to proceed under a pseudonym conditioned on a supplemental declaration from Plaintiff setting forth the matters that are uniquely within her personal knowledge….
Such a supplemental declaration was indeed filed:
[3.] I respectfully request the use of a pseudonym for all public documents within this matter against American Public Media to protect me from the harm of potential retaliation by current or future employers should they learn about this case.
[4.] The media industry is small and very connected. Further, the options for employment in Los Angeles are particularly scarce as many of the most highly coveted employers are either in the process of or completed layoffs this year.
[5.] Due to the extreme scarcity of employment opportunities, even the slightest hint of a "problem" in my industry is a black mark that makes it almost impossible to overcome. In the media industry, people know each other and have ties across companies. Further, I have had to agree to background checks as a condition of employment.
[6.] Though employers are not supposed to take the filing of lawsuits against former employers against individuals when considering employment, I believe that within my industry they unquestionably do.
[7.] Based on my more than 30 years of experience within the media industry, I believe it would be frowned upon and hurt my prospects to gain future employment within my profession if prospective employers were to find out I filed a lawsuit against a former employer.
[8.] In addition, the stress associated with knowing that any employer, colleagues, or other journalist could find this case and make determinations about me with no other information would be harmful to me.
[9.] It would haunt me and cause huge stress in any possible future conversations about Marketplace including interviews with potential employers.
And the court did indeed retroactively pseudonymize the findings.
I'm generally skeptical that such pseudonymity is proper, in large part because it interferes with people's ability to report on cases in a serious way; as I noted in this post, the names of the parties are often key to investigating the case further, for instance to answer:
- Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant?
- Is there evidence that the litigant is untrustworthy, perhaps in past cases, or in past news reports?
- Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
- Was the incident that led to the lawsuit covered or investigated in some other context?
- Is there online chatter from possibly knowledgeable people about the underlying incident?
- Is there some reason to think that the judge might be biased in favor of or against the litigant?
Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around—the parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified.
And litigation of course deploys the coercive power of the state, even as it also accomplishes private goals. A libel lawsuit, even between two private parties, is aimed at penalizing (and sometimes enjoining) supposedly constitutionally unprotected speech. An employment lawsuit is aimed at implementing a set of legal rules that constrain employers, protect employees, and affect the interests of the public in various ways, direct or indirect. In the words of Justice Holmes, writing about the fair report privilege,
It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Courts have recognized that this rationale applies also to the openness of court records, including to the presumption against pseudonymity. And evaluating the credibility of the parties, whether as to their in-court statements or as to their court filings, will often require knowing their identities.
On the other hand, as I noted in my article, in most cases where denying pseudonymity can harm parties (whether through harming privacy or reputation or otherwise), denying pseudonymity can also undermine the public policy that the civil causes of action are aimed to serve. Plaintiffs faced with the prospect of these harms might choose not to litigate. They might decline to sue or might decline to continue with their lawsuits once pseudonymity is denied.
Likewise, defendants might settle before complaints are filed, even if they have sound legal or factual defenses. The underlying causes of action (or defenses) may end up being underenforced, and useful precedent may end up being underproduced.
In any event, I thought this case was noteworthy because it illustrates that sometimes, even if not usually, courts do allow pseudonymity to protect plaintiffs' reputational and economic interest. (I should also note that the reason I'm not mentioning plaintiff's name or the name of the plaintiff's employer is that it's no longer part of the case title, and I see no reason to publicize the name any more than necessary. On the other hand, there is no legal restriction on me that would compel me to omit the name; and the decision itself strikes me as important and interesting, so I don't feel any ethical obligation to avoid posts that might be used to determine the plaintiff's identity.)
The post Plaintiff Who Sued Over Alleged Discrimination at the Public Radio <i>Marketplace</i> Show Allowed Retroactive Pseudonymity appeared first on Reason.com.
